It is time to recognize that a well-known opinion of the U.S. Supreme Court has
earned the Naked Emperor Award. This prize (which either exists or certainly should),
owes its inspiration to Hans Andersen's tale, "The Emperor's New Clothes."

The
emperor ordered a new gown, advertised to be invisible to anyone who was unworthy
of his office, or simply stupid. The makers pretended to fashion a sumptuous garment,
going through all the motions without any cloth. The emperor and other officials
who observed this process-and the courtiers watching his majesty parade in his
"new clothes"-actually saw nothing where the gown was supposed to be, whether
on the spindle or on the emperor. Of course they couldn't admit it, fearing to
expose their unworthiness or stupidity. The spell was finally broken when a child
cried out: "But the emperor has nothing on at all."

The
award-deserving effort is the High Court's deliberation last year in the University
of Michigan Law School admissions case, Grutter v. Bollinger. At issue
was the constitutionality of the school's policy, which treats applicants differently
based on their race. In previous cases, the Court had decided that governmental
racial discrimination is unconstitutional, unless narrowly tailored to serve a
compelling interest. In this case, the Court held that obtaining a "diverse" student
body qualifies as such an interest, and that the Law School's use of race is a
narrowly-tailored means for achieving it.

The
Court gained an early lead for the Naked Emperor Award by choosing to weigh, as
the possible compelling interest, a broad, general factor (diversity) that is
indeterminate, unless specified in both kind and amount. Without such specification,
rational deliberation and judgment would be impossible. I hope to demonstrate
here that the requisite specification did not occur, making the Court superlatively
eligible for the award. What could be more like an emperor's robe without cloth
than constitutional law without a rational basis?

According
to the dictionary, "diverse" means different. It is an attribute of everything
that exists, when compared with anything different from itself. A student body
may be "diverse" in any respect in which students are different from each other,
such as political or religious beliefs; racial, ethnic, social, economic, regional
or occupational backgrounds; physical, emotional, intellectual, artistic or moral
qualities; home life, family structure, parental competence; friendships or associations;
educational interests, tastes, abilities or achievements, etc., etc.

Many
student differences are in fact undesirable. Others, desirable but unimportant.
Others, important but unnecessary. Others, necessary but already present without
special efforts. Student body "diversity" is a manifold, a huge pile of disparate,
divergent, often conflicting realities. No one-including admissions committees,
college presidents, and supreme courts-can make rational judgments concerning
the value or necessity of this pile as a whole. But such judgments can be and
are made every day, when the "diversity" is specified as to kind and amount.

The
candid reader of the Grutter Court's Opinion will find that it fails to
provide enough specification for rational judgment. It gives insufficient specifics
as to kinds of "diversity," and almost none as to amounts.

The
clearest way to specify is to be explicit: to include the necessary
specifications when stating both the question for deliberation and the answering
judgment. Here are typical descriptions by the Court of the issue and the ruling:

"We
granted certiorari . . . to resolve . . . a question of national importance: Whether
diversity is a compelling interest that can justify the narrowly tailored use
of race in selecting applicants for admission to public universities." (Slip opinion,
p 9) "Today, we hold that the Law School has a compelling interest in attaining
a diverse student body." (p 16) "Our conclusion that the Law School has a
compelling interest in a diverse student body is informed by our view that attaining
a diverse student body is at the heart of the Law School's proper institutional
mission." (p 17)

In these and the Court's other formulations of the question and the judgment,
the only specification concerning "diverse" or "diversity" is that it pertains
to student bodies.

Specifications
may also be implicit, if they are reasonably implied by other language
in a court's opinion. The following kinds of "diversity" are favorably mentioned:

Taking all these as implicit specifications, what do they tell us about the kinds
and amounts of student body "diversity" that the Court has in mind? As
to kinds, some are excluded, such as irrelevant elements and contributions of
doubtful value. There remain all the elements and factors that "may be considered
valuable contributions," including but not limited to different races, backgrounds,
people, cultures, ideas, viewpoints, qualities, experiences, and achievements.
As to amounts, the only specific is enough minority students to constitute a "critical
mass."

The
Court's implicit specifications of kinds provide both categories and examples.
However, many are not very specific, being rather general (all elements
considered valuable), or uncertain (all elements considered valuable).
Moreover, the tone is rather like the wish-list of a child who feels free to ask
for everything he'd like. Adults (and universities) have to make choices, forgoing
B since getting it would leave no room or money for A. The Court sounds as if
it had never met a "valuable" "diversity" it could dispense with. Is the pursuit
of all of them a compelling state interest? Instead of evaluating them one by
one, the Court simply assumes their necessity. These specifics as to kind are
insufficient for rational deliberation.

The
implicit specification of amount obviously fails, since it applies to only one
of the many kinds of student differences that might be considered valuable. This
leaves the Court in a ridiculous position. What it wishes to judge as one thing,
student body "diversity," is actually countless things: all the possible combinations
of all the possible amounts of all the possible kinds of student difference "considered
valuable."

The
Court has chosen to juggle innumerable balls, with no idea what most of them are
or where. The conceptual muddle is illustrated by the Court's reply to a suggestion
that basing admissions on a lottery would be a race-neutral means of increasing
the amount of racial "diversity" on campus. This, said the Court, "would effectively
sacrifice all other educational values, not to mention every other kind of diversity."
(p 28) Using a lottery would indeed sacrifice the school's freedom to choose the
most promising applicants, but it would not sacrifice every kind of diversity
other than racial. On the contrary, many kinds that might be considered valuable
would be increased. A lottery would produce an entering class "more like America"
(not only in race and ethnicity but) in parentage, home life, upbringing, personalities,
opinions, tastes, social class, economic level, religious belief, and political
affiliation, than the admission standards upheld in Grutter. Given the scope of
student body "diversity," it is not surprising that the Court has no clear idea
what it has pondered and judged.

By
failing adequately to specify the subject of deliberation, the Court precluded
a rational judgment. It undertook two logically impossible tasks:

1.
There is no way of determining whether student body "diversity," unspecified as
to kind and amount, is a compelling interest or not. One can issue a finding,
but it will have no rational basis.

2.
When the supposed interest is indeterminate, there is no way of knowing whether
a racial admissions program is narrowly tailored to it. One cannot rationally
judge whether a means fits an end whose contours are indiscernible.

Such conduct, and its effect on public regard for the judicial process, were self-inflicted
wounds. Nothing in the nature of "diversity" required the Court to do what it
could not. It was free, under reason and law, to frame the question in a way that
could be answered. Rather than student body "diversity" in general, the subject
of deliberation could easily have been student body "diversity," specified in
kind and amount. For example, the Court might have weighed, as a possible compelling
interest, the Law School's stated goal of enrolling "underrepresented" minority
students (kind of diversity) in sufficient numbers for extensive campus interracial
interaction (amount). But, without such specification, deliberation and judgment
concerning student body "diversity" as a possible compelling state interest must
always be foolish, arbitrary and unacceptable.

If
anyone doubts that the Naked Emperor Award belongs to the Grutter majority, consider
that they have even improved on the original. In the story, the illusion lasted
only a few days. With the Court, it's been over a year and counting.